Practice/Industry Group Overview
Antitrust laws are a critical concern for companies of all sizes. While some companies want to avoid antitrust problems by getting advice before they occur, others find themselves confronted with government investigations or law suits. Despite the impression that the press may give that government agencies are “soft” on antitrust, there continue to be numerous investigations and lawsuits each year. Further, the vigor with which potential antitrust violations are investigated does not change depending upon which political party is in power. Dramatic changes in the 1980s to the interpretation of certain antitrust laws have been universally endorsed – making antitrust regulation a complicated maze for companies to navigate.
Greenberg Traurig’s Antitrust & Trade Regulation Group advises hundreds of clients every year. We have broad experience in handling Hart-Scott-Rodino pre-merger filings; analyzing and defending mergers, acquisitions and joint ventures; advising on business conduct; defending companies that are investigated by the Federal Trade Commission, Antitrust Division of the Department of Justice or State Attorneys General; and litigating when necessary. Many of our attorneys have worked for the Antitrust Division of the Department of Justice, the Federal Trade Commission or state attorneys general, so they understand various governmental bodies’ approaches to antitrust matters.
As the global economy expands, U.S. companies are faced not only with domestic antitrust concerns, but with the challenge of conforming their activities to comply with other countries’ antitrust laws, which vary widely. GT’s international offices and strategic alliances enable us to draw on the capabilities of international competition attorneys who work closely with our U.S. antitrust attorneys.
- Mergers and acquisitions
- U.S. and foreign pre-merger filings
- Federal and state civil and criminal investigations
- State and federal advertising laws and FTC trade regulations
M&A and Joint Ventures
GT attorneys each year review hundreds of transactions for antitrust purposes. Our work has involved representing clients in a multitude of industries – including manufacturing, wholesale, retail and services – with products ranging from traditional smoke-stack ones to complicated high-tech services.
GT’s antitrust attorneys have represented companies and advised on transactions of all sizes – from large corporations with billions of dollars of sales to considerably smaller companies and transactions in the billions of dollars, as well as lesser amounts. Additionally, we have experience dealing with acquisitions where one of the parties is in bankruptcy.
Our attorneys have broad experience with the Hart-Scott-Rodino pre-merger law and rules and regulations. We regularly advise clients on whether a transaction meets the filing thresholds or is exempt, as well as make the appropriate filing and follow it through the review process. To help clients avoid full-phase investigations – or “Second Requests,” as they are commonly called – our recommended approach is to:
- Examine a transaction early in the negotiation process to determine if there are antitrust risks, the extent of the risks, and the likelihood of an investigation
- Formulate a defense well in advance of the Hart-Scott-Rodino filing, so that we will be prepared to make a presentation to the federal government (and state attorneys general) as soon as questions surface about the transaction
- Retain economists to assist in the defense when warranted
Should a Second Request be unavoidable, our attorneys can:
- Negotiate the scope of the requested information
- Represent parties at investigatory hearings
- Appeal staff recommendations within the government agencies to the FTC Commissioners or to the Assistant Attorney General in charge of the Antitrust Division
- Negotiate consent decrees
- Negotiate with compliance officials at the government agencies on divestitures – representing either buyers or sellers of divested property
In addition, our attorneys regularly:
- Advise clients on mergers involving horizontal issues, which most commonly raise issues, as well as with transactions concerning vertical or distribution issues
- Counsel clients on the Merger Guidelines which government agencies use in evaluating mergers
- Defend mergers involving every element in the analysis, such as product and geographic market definition, anticompetitive effects, ease of entry and the failing company doctrine
- Represent customers and competitors in opposing certain transactions – which in turn gives us insight into the types of concerns that arise and helps us advise parties to acquisitions about possible opposition
- Assess the applicability of foreign pre-merger and antitrust laws in the European Union, its member states, other individual European countries, Asia and Latin America, for cross-border transactions
- Provide in-depth analysis of major acquisitions, frequently involving novel issues, for clients’ investment purposes.
GT advises clients on whether their proposed or actual practices could create antitrust issues and recommends alternative approaches which could eliminate or reduce antitrust risk. Our attorneys:
- Advise on issues arising in the distribution area, such as resale price maintenance, maximum and minimum price agreements, tying arrangements, minimum advertised pricing policies (known as MAP) and “Colgate” unilateral pricing
- Counsel clients regarding issues that can arise when a seller is also a competitor of its customer (e.g., dual distribution)
- Guide clients in means of terminating distributors to reduce the risk of lawsuits
- Counsel clients regarding price-fixing, customer and territory allocation and alliances of various sorts with competitors
- Conduct antitrust audits to determine compliance with the antitrust laws and to advise clients on any changes that should be made in their business conduct
- Prepare antitrust compliance policies, which are distributed to appropriate employees and may be accompanied by oral compliance sessions
- Advise trade associations and individual members about competitive issues and procedures they should follow to help them avoid antitrust issues
Members of our team have previously worked for the FTC and various state attorneys general enforcing consumer protection laws. We use that experience to advise and defend firm clients. Our attorneys:
- Review client advertisements for compliance with federal and state laws on deceptive advertising
- Advise clients about the application and scope of the FTC’s myriad rules and regulations, which are intended to protect consumers by requiring certain disclosures in advertisements and promotional literature
- Counsel companies on regulations which apply to all companies and those which are limited to specific industries or products, such as insulation, textiles, video equipment, cigarettes, funeral services and credit reporting
- Advise companies on the FTC’s Telemarketing Sales Rule, including the “do not call” provisions (and related state and FCC laws), use of the word “free,” negative option plans and endorsements
- Defend clients in FTC and state attorney general investigations of their literature and practices and, when appropriate, negotiate consent decrees on their behalf
Greenberg Traurig’s antitrust litigation group includes attorneys with trial experience both with the federal antitrust enforcement agencies and against them. We are currently litigating civil and criminal antitrust cases in the United States and Europe. Our international practice allows us to assemble experienced antitrust litigators to prosecute or defend and try a broad range of antitrust claims. We have experience and depth in virtually every aspect of antitrust litigation. Our lawyers are particularly adept at litigating claims in regulated industries, both in federal court and before administrative agencies.
Articles Authored by Lawyers at this office:
Noticeability Notably Nuanced
Teresa Charatjan,Jacomijn Christ,Hans Urlus, December 11, 2015
On Nov. 26, 2015, the Court of Justice of the European Union (CJEU) ruled in SIA Maxima Latvija v. Konkurences Padome, that a clause in a commercial lease agreement between a shopping center lessor and an anchor tenant, granting that anchor tenant the right to oppose the letting of the commercial...
FDA Finalizes Food Safety Regs for Preventative Controls, Hazard Analysis
M. Antonio Gallegos,Justin J. Prochnow, September 21, 2015
On Sept.10, 2015, the FDA announced two sets of final regulations which were mandated by the FDA Food Safety Modernization Act (FSMA) of 2011: (1) Preventative Controls and Hazard Analysis for Human Food; and (2) Preventative Controls and Hazard Analysis for Animal Food. The final regulations are...
Dutch Court of Appeal Allows the Use of Wiretaps by Competition Authority
Teresa Charatjan,Hans Urlus, July 31, 2015
On July 9 2015, the Dutch Court of Appeal (het College van Beroep voor het bedrijfsleven) overturned two judgments of the Rotterdam District Court. The Dutch Court of Appeal ruled that the Dutch competition authority (Autoriteit Consument en Markt hereafter referred to as ACM) is allowed to use...
DOJ Warns Extradition ‘Safe Havens’ Fading And Promises More Extradition Fights
A. John Pappalardo,Sanford M. Saunders,Nicoleta Timofti, June 16, 2015
The U.S. Department of Justice (DOJ) continues to push the extraterritorial reach of U.S. criminal laws. In the recent months, DOJ has demonstrated that its international enforcement efforts in the white-collar criminal front will include aggressive use of extradition requests for foreign nationals...
Parallel Texts: Tacit Collusion Still Legal
John J. Elliott,Scott Martin, May 25, 2015
Although it cited but a single case, a Seventh Circuit panel exhaustively addressed the crucial antitrust standard for examining parallel conduct in its April 9, 2015 affirmance of a defense summary judgment in In re: Text Messaging Antitrust Litigation.1 Judge Richard Posner authored the unanimous...
EU Approach to Information Sharing: CJEU ruling in Banana Cartel
Teresa Charatjan, May 15, 2015
Information exchanges between competitors is a highly topical issue under EU competition law. The recent judgment of the Court of Justice of the EU (CJEU), the highest EU court, confirmed its significance when it recently ruled that a bilateral exchange between banana importers of pre-pricing...
Major FTC Exclusive Dealing Decision Upheld By the Eleventh Circuit
Irving Scher, May 15, 2015
In 2009, following passage of federal legislation that provided a large infusion of money for U.S. waterworks projects that required domestic ductile iron pipe fittings, Star Pipe Products (Star) entered the domestic fittings market. In response, McWane, Inc., which since 2006 was the only U.S....
CFPB Enforcement Action Against National Mortgage Servicer
Peter L. Cockrell,Brett M. Kitt,Gil Rudolph,J. Scott Sheehan, May 12, 2015
On April 21, the CFPB announced a joint enforcement action with the Federal Trade Commission against a national mortgage servicing company that specializes in servicing delinquent loans. The complaint alleges that the mortgage servicer violated various consumer protection laws and injured borrowers...